Domestic violence, sexual assault and stalking survivors often need time off from work to care for a family member who has a serious health condition, whether mental or physical, which is caused or made worse by the abuse. The California Paid Family Leave Act provides employees who pay into the State Disability Insurance Program (SDI) with up to six weeks of partial pay each year to care for a child, parent, spouse or registered domestic partner with a serious health condition (or to bond with a newborn baby or newly adopted or foster child).

The Paid Family Leave Act (PFLA) provides pay for California employees who take time off work to care for family members. The PFLA, which went into effect July 1, 2004, entitles workers who participate in the State Disability Insurance (SDI) program to a maximum of six weeks of partial pay each year while taking time off from work. Eligible leave includes time off to: care for a child, parent, spouse or registered domestic partner with a serious health condition caused or made worse by domestic violence, sexual assault or stalking.

All California employees, including new or probationary employees, who pay into SDI qualify for benefits under PFLA. Some federal and state employees do not pay into SDI and are therefore not eligible for PFL benefits.

PFLA applies to employees regardless of their employers’ size. Therefore, the PFLA applies to many more employees than the federal and state unpaid leave laws, such as the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), which do not apply to employees working for companies with fewer than 50 employees.

PFLA covers physical and/or psychological care for the family member. Activities such as providing psychological comfort, attending to hygienic, nutritional and safety needs, arranging third party care, and directly providing or participating in the medical care all constitute “caring for” a family member.

An employee will not be eligible for PFLA benefits if another family member is ready, willing, able, and available to provide care during the same hours in a day.

For example, if your seriously ill mother has a spouse who is willing and able to care for her, then you may not receive PFL benefits to care for your mother during the same time. You may, however, receive benefits to care for her during hours in the day when her spouse is not caring for her (e.g., while her spouse is sleeping, working, etc.). EDD will approve benefits for up to three individuals to care for the same care recipient in a 24-hour period. Individuals who are unsure whether this will prevent them from receiving PFLA benefits should nevertheless apply.

The “continuing treatment” provision above requires one of the following:

a condition causing incapacity for more than three days that requires: (1) two or more visits to a health care provider, or (2) one visit with a regimen of continuing treatment and supervision;

a condition that continues over an extended period of time and requires periodic doctor visits, and which may cause occasional or periodic, rather than continuous, incapacity;

permanent or long-term absences due to a condition for which treatment may not be effective (such as terminal cancer) where the patient is under the supervision of, but not necessarily being actively treated by, a health care provider;

absences to receive multiple treatments for (1) restorative surgery, or (2) a condition which would likely cause a period of incapacity of more than three days if not treated, or pregnancy and prenatal care.

“Treatment” includes examinations to determine if a serious health condition exists as well as an evaluation of that condition. Treatment does not include routine physical, eye or dental exams.

Cosmetic treatments or surgery, and treatments for routine conditions, such as the flu, are not generally considered sufficient to count as a serious health condition.

Unlike the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), which require that employers hold jobs for eligible employees when they return from leave, the PFLA does not expressly include the right to be reinstated.

PFLA leave can be taken at the same time as family and medical leave under the FMLA and/or CFRA. Therefore, employees who receive PFLA benefits concurrently with FMLA/CFRA leave are guaranteed their jobs back when they return to work.

Even if an employee is not qualified for FMLA/CFRA time, the employee may still be protected by Labor Code Section 230.1, which permits employees of companies with 25 or more employees to take up to 12 weeks of job protected time off from work to receive services related to domestic violence or sexual assault. These services include time off from work for medical or psychological care. Therefore, qualified employees who take protected time off under Labor Code Section 230.1 may take PFLA at the same time.

An employee who takes the paid leave and is fired during or shortly after the leave, and whose employer is too small to protect the employee under FMLA/CFRA or Labor Code Section 230.1, may be able to get their job back if they prove that they were fired merely for taking the benefit of PFLA.

Not all workers qualify for FMLA/CFRA leave, because their employers have fewer than 50 employees, they’ve been employed for less than a year, or have they have worked fewer than 1,250 hours in the year preceding the leave. These employees nonetheless have the right to receive PFLA benefits when they take off work to care for a family member, though the leave is not expressly job-guaranteed.

Probably not. Although the PFLA doesn’t expressly say so, an employee who takes Paid Family Leave and is fired or disciplined (e.g. suspended during or shortly after the leave) would have a good argument that he/she was unlawfully fired or suspended in violation of public policy if he/she could prove that he/she was disciplined merely for taking PFLA.

Yes. There is a seven–day waiting period before benefits are paid. These first seven days do not have to be consecutive. For example, if one day of care were provided each week, the seven-day waiting period would be satisfied over a seven-week period.

Yes. An employer may require an employee to take up to two weeks of earned but unused vacation or paid time off (“PTO”) leave before beginning to receive benefits. One week of the vacation or PTO leave will be used to satisfy the seven-day waiting period. This requirement will not apply to employees whose union contract prohibits substitution of vacation leave for Paid Family Leave.

An employer cannot require an employee to use sick leave before receiving PFL benefits.

An employee may receive PFL benefits during leave that is taken all at one time or on an intermittent basis in hourly, daily or weekly increments.

One exception is employees receiving PFL benefits while taking job-protected leave to bond with a new child under CFRA. These employees may be required to take the bonding leave in two-week increments.

Employees taking intermittent leave still must observe the seven-day waiting period. Each day that the employee is eligible for PFL benefits will count towards this waiting period.

Employees must fill out a claim form with the Employment Development Department (EDD). Employees can apply online or by calling 1-877- BE-THERE (Español: 1-877-379-3819; TTY: 1-800-563-2441).

Pregnant women who have received SDI while on pregnancy disability leave will automatically receive a claim form from the EDD for bonding. The employee must submit the claim form and documentation to the EDD, not the employer.

Applications to care for a family member with a serious health condition require documentation of the serious health condition and an assertion that the serious health condition requires the employee to provide care for his or her relative. The health care practitioner must fill out and sign this portion of the form.

Bonding claim forms must be accompanied by documentation of the birth or placement of the adopted or foster child. Generally, parents supply a hospital discharge record, copy of the birth certificate, an adoption placement notice or other notice from a government agency stating that the child has been placed with the family.

For information about the application of family and medical leave rights to your particular situation, contact Project SURVIVE of the Legal Aid Society–Employment Law Center toll-free at (888) 864-8335 toll-free in California or (415) 593-0033 Outside California, or the Employment Development Department (EDD) at 1-877-BE-THERE.

If you sue your employer for violating family/medical leave laws, the court may reinstate you to your job and award you wages you should have been paid or a promotion you should have received, as well as reimbursement for legal costs.

Time limits apply. You should take action immediately if you think your rights have been violated.

For further information about your employment rights, contact Project SURVIVE.

For further information about your employment rights, contact Project SURVIVE.

Disclaimer

This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the Legal Aid Society–Employment Law Center cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.